Unsure about day in high court

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WASHINGTON — The Bush administration has decided to appeal to the Supreme Court a lower court decision throwing out the FCC rules fining broadcasters for a slip of the tongue, givernment officials said.

FCC commisioner Kevin Martin said he was pleased that U.S. Department of Justice Solicitor General Paul Clement has decided to appeal the closely watched free speech case.

“I am pleased that the solicitor general will be seeking Supreme Court review of the Second Circuit’s decision,” Martin said. “I continue to support the Commission’s efforts to protect families from indecent language on tele¬vision and radio when children are likely to be in the audience.”

Clement told the court Wednesday that he would make a final decision on the appeal by Nov. 1. It was the second request for an extension Cle¬ment has made. The original deadline was Sept. 2.

Clement’s office declined comment on the request, directing all calls to the DOJ. FCC officials said they had not seen Clement’s request.

Andrew Jay Schwartzman, president of the nonprofit Media Access project and an expert in free speech issues, said a request like Clement’s doesn’t necessarily mean that he plans to challenge the New York appeals court, which said the FCC failed to justify the rules.

“This is most likely attributable to the unbelievable bureaucracy of the solicitor general’s office and an unbelievable crush of cases,” he said. “They ask for extensions all the time, and they are routinely granted. It doesn’t mean they’re going to file.”

In its decision, the commission decided that language used by Cher and Nicole Richie during the 2002 and 2003 Billboard Music Awards was indecent and profane. During the 2002 show, Cher told the audience: “People have been telling me I’m on the way out every year. So fuck ’em.” In 2003, Richie said: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

While the commission found that the shows violated the broadcast indecency rules, it didn’t issue a fine because the shows predated a policy established in 2004 after U2 frontman Bono said wining a Golden Globe was “really, really fucking brilliant.”

In the Bono decision, the commission changed its definition of “fleeting” use, deciding that a certain word can be so vile that it runs afoul of the nation’s indecency laws. The court’s decision appears to undo the Bono decision, which has been sitting at the commission on review for some time.

The federal court in Philadelphia also is deciding if the FCC’s $550,000 fine of CBS for Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show violated the commission’s indecency rules.

The two cases together are likely to decide whether the government’s entire indecency regulatory regime will fall or remain.
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